BJD urges Odisha Assembly Speaker to disqualify 8 MLAs for cross-voting in Rajya Sabha elections

A petition was filed before the Odisha Assembly Speaker seeking disqualification of eight Members of the Legislative Assembly for voting against their party'...

What Happened

A petition was filed before the Odisha Assembly Speaker seeking disqualification of eight Members of the Legislative Assembly for voting against their party's candidate during Rajya Sabha elections — a practice commonly called "cross-voting."
A separate national party also suspended three of its MLAs from the same state for similar conduct during the same elections.
The petitions raise the legally contested question of whether voting in Rajya Sabha elections constitutes a "proceeding" of the Legislative Assembly subject to party whip and, consequently, the Tenth Schedule's disqualification provisions.
The Speaker must determine whether to accept the petition, conduct a quasi-judicial inquiry, and rule on disqualification — a process that courts have ruled is subject to judicial review.

Static Topic Bridges

Anti-Defection Law and the Tenth Schedule

The Tenth Schedule to the Constitution, inserted by the 52nd Constitutional Amendment Act, 1985, provides for the disqualification of members of Parliament and State Legislatures who defect from their political party. Under Paragraph 2(b) of the Tenth Schedule, a member is liable to be disqualified if they vote or abstain from voting in the House contrary to a direction issued by the political party to which they belong (a "whip"), unless they have been condoned by the party within 15 days.

Paragraph 2(a) — disqualification for voluntarily giving up party membership
Paragraph 2(b) — disqualification for defying the party whip in voting
Paragraph 6 — the Speaker/Chairman is the sole adjudicating authority; decision is final subject to judicial review
91st Constitutional Amendment Act, 2003 — abolished the "split" exemption (Paragraph 3); merger (two-thirds) is now the only group exemption
Kihoto Hollohan v. Zachillhu (1992) — Supreme Court held that the Speaker/Chairman's disqualification decisions are subject to judicial review on grounds of mala fide, perversity, or violation of natural justice; interim orders by the Speaker are also reviewable

Connection to this news: The party concerned argues that voting against the party-endorsed candidate in Rajya Sabha elections constitutes a breach of party direction under Paragraph 2(b). However, a well-established constitutional precedent holds that this argument faces a significant legal barrier.

Cross-Voting in Rajya Sabha Elections — The Kuldip Nayar Judgment

In Kuldip Nayar v. Union of India (2006), the Supreme Court upheld the open ballot system introduced for Rajya Sabha elections and clarified a critical constitutional point: voting in Rajya Sabha elections by MLAs is NOT a proceeding of the State Legislative Assembly. Since the Tenth Schedule applies to voting "in the House," and Rajya Sabha elections are conducted by the Election Commission under the Representation of the People Act, 1951 (not as a floor proceeding), a party cannot issue a binding "whip" for such elections. Therefore, an MLA who cross-votes in a Rajya Sabha election does NOT face disqualification under the Tenth Schedule, though they may face internal party disciplinary action.

Kuldip Nayar v. Union of India, (2006) 7 SCC 1 — key case on Rajya Sabha elections and open ballot
Open ballot system introduced by amendment to the Representation of the People Act, 1951 in 2003: MLAs belonging to a party must show their marked ballot to the party's authorised agent before depositing it
Independent MLAs are prohibited from showing their ballots to anyone
Single Transferable Vote (STV) system used for Rajya Sabha elections under Article 80(4)
The election is conducted under the Election Commission's superintendence, making it a separate proceeding from legislative assembly business

Connection to this news: Based on the Kuldip Nayar precedent, the disqualification petitions face a fundamental legal hurdle: cross-voting in Rajya Sabha elections does not attract Tenth Schedule disqualification. The Speaker would likely be bound to dismiss such petitions, though any departure from this ruling would invite judicial review.

Speaker's Quasi-Judicial Role in Disqualification Proceedings

The Speaker of the Legislative Assembly acts as the adjudicating authority for disqualification petitions under the Tenth Schedule. In this capacity, the Speaker exercises quasi-judicial powers — required to hear both sides, consider evidence, and give a reasoned decision. However, the Speaker's dual role as the presiding officer of the House and as a member of a political party has long been criticised for creating an inherent conflict of interest.

Paragraph 6, Tenth Schedule — Speaker/Chairman is the final authority on disqualification
Rules of Procedure under the Tenth Schedule govern the conduct of disqualification inquiries
Nabam Rebia v. Deputy Speaker (2016) — Supreme Court ruled that the Speaker cannot proceed with disqualification petitions while a motion for their own removal is pending
Keisham Meghachandra Singh v. Speaker, Manipur (2020) — Supreme Court held that the Speaker must decide disqualification petitions within a "reasonable time" (suggested 3 months)
The Election Commission has no role in Tenth Schedule disqualifications, which are purely Parliamentary/legislative matters

Connection to this news: The Odisha Assembly Speaker must decide whether the petitions are maintainable at all, given the Kuldip Nayar precedent. A decision to proceed would itself be judicially reviewable.

Key Facts & Data

Tenth Schedule — inserted by 52nd Constitutional Amendment, 1985
Paragraph 2(b): disqualification for defying party whip in voting "in the House"
Rajya Sabha elections conducted under Representation of the People Act, 1951, Section 59 (open ballot provision, inserted 2003)
Kuldip Nayar v. Union of India (2006) 7 SCC 1 — cross-voting in RS elections does not attract Tenth Schedule disqualification
Open ballot system: MLAs must show ballot to party's authorised agent before depositing; violation disqualifies the vote (not the MLA)
Article 80(4) — Rajya Sabha members elected by STV by elected MLAs
Keisham Meghachandra Singh case (2020): Speaker must decide disqualification within a reasonable time (suggested 3 months)
Number of MLAs facing disqualification petition in Odisha: 8 (petition filed by one party) + 3 suspended by another party